Tuesday, April 6, 2021

Justices Gorsuch and Alito on inconsistent application of "undue hardship" under ADA and Title VII

I was juuuust talking about this in my employment law course. As luck would have it, we discussed both disability accommodation (under the ADA) and religious accommodation (under Title VII). I, of course, explained that an employer is not required to accommodate an employee (under either statute) if the accommodation would impose an "undue hardship" on the employer.  

Now, here's the weird part . . . under the ADA, "undue hardship" means "significant difficulty or expense in light of the employer's financial resources, the number of individuals it employs, and the nature of its operations and facilities." Under Title VII, it means "more than a de minimis cost." Same phrase. Different meanings. (quotes from Small, link below).

The miniscule bar for religious accommodations under Title VII was placed by the Supreme Court in Trans World Airlines, Inc. v. Hardison. The end result is that employers face a far more demanding obligation to accommodate disability compared to religion. Notably, both USERRA (in addressing an employer's obligation to restore a returning servicemember to their prior position) and the ACA (providing breaks for nursing mothers) utilize the ADA standard.  

Yesterday, the Supreme Court denied certiorari in (decided not to hear) Small v. Memphis Light, Gas & Water. Justices Gorsuch and Alito penned a dissent from denial of cert. They wanted SCOTUS to take this religious accommodation case and "correct" the "mistake" of Hardison. The de minimis standard remains the definition of "undue hardship" for religious accommodations... for now. The current SCOTUS lineup seems pretty favorable to religious accommodations though, so the de minimis standard's days may be numbered. 

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